United States District Court, S.D. New York
the plaintiff: Brittany Sloane Weiner Marsha Mozammel Imbesi
the defendants: Amy Joy Traub Jacqlyn Rebecca Rovine Baker
& Hostetler LLP
OPINION AND ORDER
COTE United States District Judge.
Paxton (“Paxton”) has brought this action against
her former employer, Fluor Enterprises, Inc.
(“Fluor”), alleging that, in violation of the
Americans with Disabilities Act (“ADA”), 42
U.S.C. §§ 12101-12213, and the New York State Human
Rights Law (“NYSHRL”), she was not reasonably
accommodated and discharged. On October 26, 2016, Fluor moved
for summary judgment. For the reasons set forth below, the
motion is granted in part.
following facts are undisputed or taken in the light most
favorable to the plaintiff. Paxton was born in 1950 with a
single cleft lip and single cleft palate. As a child, Paxton
had three or four surgeries to address her cleft lip and
palate, following which this condition was no longer visible
to lay observers.
was hired in 1998 by Fluor's predecessor, Grubb &
Ellis Management Services, Inc. (“GEMS”), as an
administrator handling construction projects for GEMS's
contract with IBM. From 2000 until 2006, Paxton worked for
GEMS in one of many cubicles situated in a single, large room
(the “open landscape”). During that time, Paxton
received positive performance reviews. Paxton testified at
her deposition that she was repeatedly sick and absent from
work as the result of sinus infections. During that period,
Paxton's physician, Dr. Kevin Lieu, prescribed her
medication on only four occasions.
early 2006, Paxton asked the GEMS site manager, Raymond
Andreassen (“Andreassen”), that she be permitted
to sit in an enclosed office space. Paxton was relocated to
an enclosed office. At Andreassen's request, Paxton
provided a note from Dr. Lieu stating, “Paxton is
recommended to avoid drafts due to sinus infections.”
Around the same time, Paxton informed Andreassen that she had
a cleft lip and palate and had undergone surgeries as a child
to address this condition. Paxton also told Andreassen that
the surgeries had left her susceptible to colds and sinus
infections. Paxton remained in the office from February 2006
until September 2011. During that period, Dr. Lieu prescribed
Paxton medication on 14 occasions.
October 1, 2011, Fluor replaced GEMS on the IBM contract and
took over GEMS's office space. Many GEMS employees,
including Paxton, were interviewed and hired for positions
with Fluor. The only reference to Paxton's condition on
her Fluor employment application was that she had a
“special needs office environment.” As part of
the transition from GEMS to Fluor, Fluor undertook a
reorganization of Paxton's department, including
reassigning Paxton to support a larger team with a different
and more demanding set of tasks.
this new team and role, Fluor determined that it would be
necessary to move Paxton from her enclosed office to a
cubicle in the open landscape. Informed by Andreassen that
Paxton should be situated so as to avoid drafts, Fluor
management sought to locate a cubicle with minimal airflow.
Although Fluor measured the air in the proposed cubicles and
found that they had an air flow velocity below one foot per
minute, Paxton refused to move out of her office on the
ground that it would interfere with her disability.
email sent on the morning of October 26, 2011, Fluor's
director of operations and management, Steve Short
(“Short”), explained Fluor's decision that
Paxton would be relocated to the open landscape and informed
Paxton that Fluor would provide a letter and a medical
certification form for her to deliver to her physician to
document her disability. Rather than use Fluor's form,
however, Paxton procured her own note from Dr. Lieu, which
stated, “Ms. Paxton is suffering from bad
URI/sinusitis/bronchitis, whenever she is exposed to drafts
[o]r dusty environment due to her physical disabilities from
previous surgeries. Therefore she has been advised to avoid
such environment at all times.” On November 2, 2011,
Paxton met with Andreassen and two of Fluor's human
resources representatives, Mary Smith and Stephanie
Livingston (“Livingston”). Andreassen brought
Fluor's medical letter and certification form to this
meeting. While discussing Fluor's and Paxton's
concerns about Paxton's relocation and alleged
disability, Paxton became upset and threatened to leave.
Livingston warned Paxton that if she left the meeting, she
would be reprimanded. Nonetheless, Paxton left, and
Livingston decided to discharge Paxton. The following day,
Fluor sent Paxton a letter informing her of this decision.
commenced this action before the Honorable Analisa Torres on
May 14, 2015. She brings claims against Fluor for disability
discrimination, failure to provide a reasonable
accommodation, hostile work environment,  and retaliation.
Fluor moved for summary judgment on October 26, 2016. On
November 22, 2016, the case was reassigned to this Court.
judgment may not be granted unless all of the submissions
taken together “show that there is no genuine dispute
as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a).
“Summary judgment is appropriate when the record taken
as a whole could not lead a rational trier of fact to find
for the non-moving party.” Smith v. County of
Suffolk, 776 F.3d 114, 121 (2d Cir. 2015) (per curiam)
(citation omitted). The moving party bears the burden of
demonstrating the absence of a material factual question, and
in making this determination, the court must view all facts
in the light most favorable to the non-moving party.
Eastman Kodak Co. v. Image Tech. Servs., Inc., 504
U.S. 451, 456 (1992); Gemmink v. Jay Peak Inc., 807
F.3d. 46, 48 (2d Cir. 2015), cert. denied, 136 S.Ct.
1684 (2016) (mem.). If the moving party makes this initial
showing, the burden then shifts to the opposing party to
establish a genuine dispute of material fact. El-Nahal v.
Yassky, 835 F.3d 248, 252, 256 (2d Cir. 2016).
party opposing summary judgment “may not merely rest on
the allegations or denials of his pleading; rather his
response, by affidavits or otherwise as provided in the Rule,
must set forth specific facts demonstrating that there is a
genuine issue for trial.” Wright v. Goord, 554
F.3d 255, 266 (2d Cir. 2009) (citation omitted); accord
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
“Conclusory statements, conjecture, and speculation are
insufficient to create a genuine factual dispute, ”
Major League Baseball Props., Inc. v. Salvino, Inc.,
542 F.3d 290, 319 (2d Cir. 2008), as is “mere
speculation or conjecture as to the true nature of the
facts.” Hicks v. Baines, 593 F.3d 159, 166 (2d
Cir. 2010) (citation omitted). Only disputes over material
facts -- “facts that might affect the outcome of the
suit under the governing law” -- will properly preclude
the entry of summary judgment. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
cases involving claims of employment discrimination “an
extra measure of caution is merited in [considering] summary
judgment” because “direct evidence of
discriminatory intent is rare and such intent must often be
inferred from circumstantial evidence found in affidavits and
depositions.” Schiano v. Quality Payroll Sys.,
Inc., 445 F.3d 597, 603 (2d Cir. 2006) (citation
omitted). Nonetheless, “a plaintiff must provide more
than conclusory allegations to resist a motion for summary
judgment.” Holcomb v. Iona Coll., 521 F.3d
130, 137 (2d Cir. 2008). Ultimately, the test for summary